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Again, this post is being written with thoughts which have been prompted by a thread on the Mumsnet forums. A woman said she was woken up in the night by her partner having sex with her, and felt very shocked and “didn’t know what was happening”.

Legally, having sex with someone who is sleeping is rape. Rape is the penetration of a person without their consent, or without good reason to believe consent would be given. A person may assume his or her partner would be willing for sex in the middle of the night, but this does not equate to consent, as consent is regularly withdrawn within relationships. The old-fashioned stereotype of a woman having a headache and saying, “No dear, not tonight.” No two people are always in the mood for sex, even if they’re in a relationship.

We can’t say the consent is implied just because of a pre-existing relationship between the two people involved, as we’re all aware that rape can happen within relationships and marriage.

But there are people in the world who say they enjoy being woken up with a sex act or penetration from their partner. They find it arousing, or erotic. One friend said to me once, “I woke up in the middle of the night and he was touching me. It was such a turn on to think that even though I was sleeping he couldn’t keep his hands off me.” Are these people encouraging the problem? Surely it’s within their rights to have whatever sexual interactions they want within their relationship?

The same could be said about porn. The porn industry is undeniably wrong in many ways, from the problem of vulnerable young women being “used” for sex to make money, to the issue of men being given an impression that is not true of females – that they are sexual beings to be objectified and used as necessary to create an orgasm. However, pornography is enjoyed by many, from young to old, male or female, in some cases to enhance a sexual relationship in a couple, and in others to assist with sexual discovery or, of course, self-pleasuring. Should each individual viewer of porn be penalised for being “part of the problem”? Or are they entitled to use a legally acceptable service in the privacy of their own homes if they enjoy it and feel their lives are in some way enhanced by it?

We have to accept that sex between two consenting adults is acceptable and that, if consent has been given or is definitely implied, that one of them may initiate the encounter whilst the other is asleep. However, to tackle the problem of whether or not an individual encounter is rape, we have to ask the following question:

Did you give the person reason to believe you would consent to having sex while you were asleep?

Even if you have had sex with the person before, or are in a relationship with them (be it a happy or unhappy relationship), that is not reason alone for a person to believe consent is implied. The only way you would have given someone the impression that you consented to sex being initiated while you slept would be if you explicitly told them so.

“I want you to wake me up with sex tonight/in the morning” would be consent.

Perhaps it’s not the most “obvious” kind of rape as it is not regularly mentioned in the media, and it doesn’t include any of the “clichés” regularly featured when rape or sexual assault is depicted on television or in the movies. Nontheless, it is rape – realistically, morally and legally. I would go so far as to say it is probably one of the most common types of rape and also the least documented and convicted rapes as, often, the person who was asleep when it occurred isn’t even aware that they were raped, or doesn’t feel people would agree that it was rape even if they’re aware of it themselves.

To sum things up:

Having sex with a sleeping person is definitely rape, unless they have explicitly given their full consent for that individual encounter.

I will raise my daughter to know that if someone has sex with another person while they are asleep, it is rape.